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Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned

Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned

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Published by Robert Sloan
New article on the PIECP program by Bob Sloan and published this month (March 2010) in Prison Legal News. A must read for those wondering where their private sector jobs have gone and why...
New article on the PIECP program by Bob Sloan and published this month (March 2010) in Prison Legal News. A must read for those wondering where their private sector jobs have gone and why...

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Categories:Types, Research, Law
Published by: Robert Sloan on Mar 18, 2010
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The Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned 
by Bob Sloan
From the late 19th century into the depression years, Americans struggled economically.For the man and woman on the street to the businesses, companies and manufacturers vainlytrying to keep their enterprises afloat, those were difficult times. States strained to overcome thedesperate financial situation which held citizens captive as a result of few jobs and even lessincome or money available for business capital.To partially overcome the public’s lack of – and need for – everyday household,agricultural and other necessary items, many states began allowing their prison systems to put prisoners to work producing products for consumers. Many of those goods were distributedoutside the state of manufacture and began to compete with private sector companies, whichwere already having difficultly finding markets for their products in the slow economy.
Legislating Limits on Prison Industry Programs
In 1924, the U.S. Secretary of Commerce, Herbert Hoover, held a conference on the“ruinous and unfair competition between prison-made products and free industry and labor” (70Cong. Rec. S656 (1928)). As a result of that conference, an advisory committee was formed tostudy the issue. The need for such a committee was in response to complaints from private sector  businesses alleging unfair competition from more and more prison-made products finding their way to the marketplace. In 1928, the committee issued its report to Congress.The eventual legislative response to the committee’s report led to some very importantfederal laws regulating the manufacture, sale and distribution of prison-made products. Congressenacted the Hawes-Cooper Act in 1929, the Ashurst-Sumners Act in 1935 (now known as 18U.S.C.
1761(a)), and the Walsh-Healey Act in 1936. Walsh controlled the production of  prison-made goods while Ashurst prohibited distribution of prison-made products in interstatetransportation or commerce. Both statutes authorized federal criminal prosecutions for violationsof state laws enacted pursuant to the Hawes-Cooper Act.The pertinent language of these laws, as amended, now provides:“Whoever knowingly transports in interstate commerce or from any foreigncountry into the United States any goods, wares, or merchandise manufactured, produced, or mined, wholly or in part by convicts or prisoners, except convicts or  prisoners on parole, supervised release, or probation, or in any penal or reformatory institution, shall be fined under this title or imprisoned not more thantwo years, or both.”Thus, for several decades to come, the manufacture of prisoner-made products for publicor private sale and distribution was prohibited. Certain prison industry products were exempted by statute from the Ashurst-Sumners Act, including “agricultural commodities or parts for therepair of farm machinery.”Codified at 18 U.S.C.
1761, the Prison Industries Enhancement Certification Program(PIECP, or “PIE” as it is commonly called) was implemented in 1979. PIECP relaxed the
restrictions imposed under the Ashurst-Sumners and Walsh-Healey Acts, and allowed for themanufacture, sale and distribution of prisoner-made products across state lines. However, PIECPlimited participation in the program to 38 jurisdictions (later increased to 50), and required eachto apply to the U.S. Department of Justice for certification.PIECP includes mandatory requirements that must be met prior to receiving certificationto participate in prison industry programs. Eligible jurisdictions that apply to take part in PIECPmust meet all nine of the following criteria:1. Legislative authority to involve the private sector in the production and sale of prison-made goods, and administrative authority to ensure that mandatory program criteria will be metthrough internal policies and procedures.2. Legislative authority to pay wages at a rate not less than that paid for similar work inthe same locality’s private sector (termed “prevailing wages”).3. Written assurances that the PIECP program will not result in the displacement of free-world workers already employed before the program is implemented.4. Authority to provide worker benefits, including workers’ compensation or itsequivalent.5. Legislative or administrative authority to take deductions not to exceed 80 percent of  prisoners’ gross wages for room and board; federal, state and local taxes; allocations for familysupport pursuant to state statute, court order or agreement of the offender; and contributions of not more than 20 percent but not less than 5 percent of gross wages to any fund established bylaw to compensate victims of crime.6. Written assurances that participation by prisoner workers will be voluntary.7. Written proof of consultation with related organized labor groups before startup of thePIECP program.8. Written proof of consultation with related local private industry before startup of thePIECP program.9. Compliance with the National Environmental Policy Act and related federalenvironmental review requirements.The reasoning behind these stipulations, as mandated by Congress in 18 U.S.C.
1761,was to allow competition between prison industries and private sector manufacturers. The ninerestrictions listed above were intended to “level the playing field.” By making the requirementsmandatory, Congress believed they would make prison industries competitive with free-world businesses without giving either an unfair advantage.But PIECP goes even further, by allowing private sector businesses to “partner” with prison industry programs through joint ventures to manufacture products or provide services tothe general public. Such partnerships are also required to abide by the nine mandatoryrequirements.In 1999, the U.S. Department of Justice’s Bureau of Justice Assistance (BJA) issued finalguidelines for PIECP programs after allowing all participants to discuss and argue for or againstthe provisions contained within the guidelines. The mandatory requirements were included in theguidelines and are now the “law of the land” with regard to prison industries and their private-sector business partners.
The Fox Guarding the Prison Industry Henhouse
PIECP programs include safeguards to ensure that Congress’ intent regarding themandatory requirements are followed by all participants, with private sector and prison industriescompeting on an equal footing.However, as with any situation where free enterprise and capitalism flourish, the pursuitof profits often outstrips rules and regulations designed to prevent abuses. There have been manyexamples of profiteering at the expense of regulatory compliance – such as with the currentmeltdown on Wall Street, the Enron and WorldCom scandals, and ponzi schemes like that of Bernie Madoff (which brought down the JEHT Foundation, a major funder of criminal justice programs) [See:
, June 2009, p.34]. Both individuals and businesses in pursuit of profiteither ignore controlling laws or find loop holes.PIECP is no different. In addition to the usual practice of exploiting free-world workers,corporations now exploit prisoner labor through PIECP programs. In the beginning, small businesses that had trouble hiring or retaining employees due to low wages or fluctuating work schedules solicited partnerships with prison industries. This changed dramatically by the 1990s,when companies such as Wal-Mart, Victoria’s Secret, Boeing, Microsoft, Starbucks and dozensof others joined the ranks of U.S. businesses that benefited from PIECP programs, usuallythrough subcontractors. [See:
, April 2009, p.32; March 1997, p.1].Prisoners are now making more than just license plates and road signs. Oregon’s prisonfactories are perhaps best known for the “Prison Blues” line of blue jeans and other clothing soldon the open market. Tennessee prisoners have manufactured clothes for Kmart and JC Penney, aswell as wooden rocking ponies for Eddie Bauer and, more recently, hardwood flooring. Prisonersin Ohio produced car parts for Honda until the United Auto Workers intervened. Prisoners have been employed in data entry and computer circuit board assembly programs, and have evenworked in a TWA call center. Incarcerated workers in Utah make cold-weather clothing for  Northern Outfitters, while Arkansas prisoners produce cable assemblies and wire harnesses usedin medical equipment.Once private sector companies were allowed to partner with PIECP prison industries tomanufacture products and make them available to the general public, they began seeking waysaround the program’s mandatory requirements, which were interfering with the corporate goal of generating more profit.In 1995, the BJA outsourced oversight and management of PIECP programs to a non- profit group, the National Correctional Industries Association (NCIA). The PIECP guidelines areavailable on NCIA’s website: www.nationalcia.org.The government’s decision to use NCIA to fulfill its oversight responsibilities appearedto be a natural choice. The association was experienced and knowledgeable about prison industryoperations, and was already established. The DOJ and BJA issued a handsome government grantto the NCIA to oversee PIECP programs. In the end, however, this proved to be a poor choicethat has led to significant abuses.Most of the NCIA’s members are administrators and employees of state prison industry programs and their PIECP private sector partners, vendors and suppliers. The association’s boardof directors is almost exclusively composed of prison industry officials. Thus, the NCIA includesthe very PIECP participants that it is charged with monitoring; in effect, it is overseeing itself.The BJA requires PIECP partners to be reviewed for compliance with the mandatoryrequirements prior to starting any new prison industry. Following issuance of a certificateallowing a prison industry to begin operations, the program must be reviewed for continuingcompliance. These reviews – initial and annual – are to check the wages being paid to prisoner 

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